LINCAI GAMANGO AND ORS.versusDAYANIDHI JENA AND ORS.

                   LINCAI GAMANGO AND ORS.                                A
                                  V.

                   DAYANIDHI JENA AND ORS.

                            MAY 31, 2004

                                                                          B
           [BRIJESH KUMAR AND ARUN KUMAR, JJ.]

     Orissa Scheduled Areas Transfer ofImmovable Property (By Scheduled
Tribes) Regulations, 1956; Sections 2(/), 3(1) & 5(2) :

     Immovable property/land-Allegedly forcibly occupied by respordents, C
non-tribals-Owners, belonging to tribal community, filed petition claiming
possession-Allowed by Competent Authority-Appellate authority
remanded the cases to trial Court for further enquiry-Trial Court
dismissed the petition holding that since the suit land was in possession
of the respondents for more than the prescribed period of limitation, D
provisions of the Regulation not attracted-Reversed by Appellate Court
restoring back possession of the land to owners-Challenge to-Allowed
by High Court-On appeal, Held : Disputed land falls within scheduled
area in possession of respondents, non-tribals-A non-tribal would not
acquire right and title on the basis of adverse possession-High Court E
ought to have dealt with the issues regarding possession and ownership
ofthe land with reference to burden ofproof before arriving at its finding-
Hence finding of the High Court not sustainable-Matter remanded to
High Court for fi'esh hearing and decision.

     Appellants-owners of the suit land, belonging to a scheduled tribe
                                                                          F
community, filed petitions before the Competent Authority"claiming
possession over the suit land on the ground that the respondents had
taken over possession of the disputed land forcibly. The Authority
decided in favour of the petitioners-owners and directed respondents
to hand over possession to them. Appellate authority remanded the G
matter to trial Court for further enquiry. In the meantime, the State
Government promulgated Orissa Scheduled Area Transfer of
Immovable Property (By Scheduled Tribes) Regulations, 1956 in terms
thereof the disputed land falls in scheduled area. Trial Court dismissed
the petition holding that since the suit land was in possession of the H
                                  825
    826                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A respondents for more than 30 years, it would not attract the provisions
    of the Regulations. Appellate Court found that since the appellants
    were deprived of possession over the disputed land forcibly by the
    respondent, they were entitled to get back possession in terms of the
    Regulations. Aggrieved, respondents filed a writ petition which was
B   allowed by the High Court. Hence the present appeals.

          Allowing the appeals, the Court

          HELD : 1.1. Generally subject to certain exceptions, alienation of
C immovable property by a tribal to a non-tribal is impermissible and
    it is invalid, null and void. [828-GJ

         1.2. It is clear that a non-tribal would not acquire right and title
    on the basis of adverse possession. Hence, the ground for setting aside
    the order passed by the Appellate Court falls through, other factual
D   aspect about the possession of the respondents over the disputed land
    and entries in their favour may also not be of much consequence. In
    any case, this aspect of the matter has to be sel!n and considered afresh
    in the light of other facts and circumstances of the case. [832-8-C-D)

E        Amrendra Pratap Singh v. Tej Bahadur Prajapati & Ors., JT (2003)
    9 SC 201; Madhavrao Waman Saundalgekar & Ors. v. Raghunath
    Venkatesh Deshpande & Ors., AIR (1923) P.C. 205 and Karimullakhan
    s/o. Mohd. Jshaqkhan & Anr. v. Bhanupratapsingh, AIR 36 (1949)
    Nagpur 265, relied on.

F         Madhiya Nayak v. Arjuna Pradhan & Ors., 65 (1988) C.L.T. 36,
    distinguished.

       1.3. The question of acquisition of right and title by adverse
  possession by non-tribal over the land in the scheduled area belonging
G to a member of the Scheduled Tribe does not arise. The finding of the
  High Court on this point is not sustainable; the whole matter needs a
  fresh look by the appellate authority. If necessary, other relevant
  evidence on the record as sought to be pointed out by the appellants
  may also have to be seen in the light of the provisions of Regulation
H No. 2 of 1956. The implications of the claim of the respondents for
     LINCAI GAMANGO v. DA YANIDHI JENA [BRIJESH KUMAR, J.] 827

allegedly having perfected their rights by adverse possession may also A
have to be examined. Hence, the matter is remanded to the High Court
for fresh hearing and decision. (832-H; 833-A-B-C-D)

     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 868-74 of
1998.
                                                                              B
     From the Judgment and Order dated 27 .10.92 of the Orissa High
Court in O.J.C. Nos. 3992, 3993, 3994, 3995, 3996, 3997 and 3998 of
1989.

     S.P. Sharma, M.P. Raju, Ms. Leni Thomas, Ashwani, Abhishek Atrey C
and Shishir Singh for the Appellant.

    Janaranjan Das, Swetaketu Mishra, Ms. Moushumi Gahlot, Mrs. Kirti
Renu Mishra and Y. Prabhakara Rao for the Respondents.
                                                                              D
     The Judgment of the Court was delivered by

      BRIJESH KUMAR J.: The proceedings of these appeals before this
Court arise out of the Revenue Miscellaneous Cases No. 150 to 156of1976
filed by the appellants separately against the separate respondents under E
the provision of Orissa Regulation No. 2 of 1956 before the Project
Administrator, l.T .D.A., Parlakhemundie and Addi. District Magistrate,
Ganjam in the State of Orissa. The cases were filed by the appellants who
belong to Scheduled Tribes of Khariaguda village in Gumma block
whereas the respondents who have been impleaded as opposite parties in F
different cases are Pano Christians of Asharyaguda village. It appears that
the land in dispute falls in village Khariaguda which is a scheduled area
under the provisions of the Regulation No. 2 of 1956. The claim of the
appellants who filed different cases is that the land belongs to them but
it has been forcibly occupied by the respondents. The cases were decided
in favour of the appellants with a direction for restoration of suit land to G
them vide order dated 28.2.1979 passed by O.S.D., Parlakhemundie. On
appeal, however, the Addi. District Magistrate, Ganjam, Chatrapur, remanded
the cases for further inquiry with an observation that the identity of the suit
land was to be ascertained in reference to kabala of 5.5.1927 T.S. No. 16/
61 with assignment of plot numbers etc. in the said settlement.                 H
    828                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A       Before further proceeding with the matter, it would be relevant to
  mention that the State of Orissa promulgated the Regulation in exercise of
  power conferred by sub-para (2) of para 5 of the Fifth Schedule to the
  Constitution, known as the Orissa Scheduled Areas Transfer of Immovable
  Property (By Scheduled Tribes) Regulation, 1956, known as the Orissa
B Regulation No. 2 of 1956, to be referred to as such hereinafter. According
  to clause (f) of Section 2, "Transfer of immovable property" has been
  defined to mean :

             "mortgage with or without possession, lease, sale, gift, exchange
             or any other dealings with such property not being a testamentary
c            disposition and includes a charge or contract relating to such
             property."

  Section 3 of the Regulation provides that transfer of any immovable
  property by a member of a Scheduled Tribe to anyone not belonging to
D a Scheduled 'tribe shall be absolutely null and void except where it is
  with previous consent, in writing, of the competent authority. Sub-section
  2 of section 3 also provides that the competent authority may on his
  own motion order for ejectment of a person in possession in contravention
  of sub-section (1) of Section 3. Sub-section (I) of Section 3 reads as
E under:
             ''3 .( l) Notwithstanding anything contained in any law for the time
             being in force any transfer of immovable property situated within
             a Scheduled Area, by a member of a Scheduled Tribe shall be
             absolutely null and void and of no force or effect whatsoever
F            unless made in favour of another member of a Schedule Tribe or
             with the previous consent in writing of the competent authority.

             (2) xxx     xxx     xxx"

          We further find that under sub-section 2 of section 5 a even surrender
G or relinquishment is deemed to be a transfer of property within the meaning
    of the Regulation with certain exceptions. It is thus clear that generally
    subject to certain exception, alienation of immovable property by a tribal
    to a non-tribal is impermissible and it is invalid, null and void.

H         Coming back to the facts of this case, we find that after the remand,
     LINCAI GAMANGO v. DA YANIDHI JENA [BRIJESH KUMAR, J.] 829

the matter was heard and it also transpires that some other parties were also A
allowed to intervene. The Revenue Inspector who was assigned the job of
identification of the plots, submitted his report and also entered into the
witness box for his cross-examination. The Trial Court, on considering the
report of the Revenue Inspector, observed as under:" ..... From the above
it can be seen that the boundaries indicated by the Revenue Inspector in B
his cross-examination is nearly co-terminus with the boundary indicated
in the kabala of 1927 and is !o be accepted". The Project Administrator,
l.T.D.A, Parlakhemundie further observed that as per report of the Revenue
Inspector the suit land had been recorded in the names of some of tile
second and third party respondents. It is also observed on the basis of the
report of the Revenue Inspector that the petitioners, namely, appellants C
herein (the tribals) had not raised any objection at any stage of the
settlement operation claiming the suit land. It is though not indicated which
of the respondents are in possession of the suit land but it is observed that
some of them are in possession as per kabala of 1927 for more than 30
years which is the limitation period according to Section 7-D. Therefore, D
it would not attract Section 3 A(l) of the Orissa Regulation No. 2of1956.
Accordingly, the Trial Court dismissed the petitions. The whole order
seems to be based on the report of the Revenue Inspector.

      Aggrieved by the order passed by the Trial Court, the appellants E
preferred appeals, separately, which have been numbered as Regulation
Appeal No. 1 of 1987 to Regulation Appeal No. 7of1987. The Collector
and District Magistrate, Ganjam, the appellate authority allowed the
appeals setting aside the order dated 25.3.1987 passed by the Trial Court
after remand with a direction to restore the possession to the appellants
forthwith as per direction given by the Trial Court in its earlier order. The
                                                                              F
appellate court observed that the Addi. Districl Magistrate, while remanding
the case, only wanted the lower court to give a definite finding as to the
identity of the lands with reference to the R.S.D. of 1927 entry in the ROR
and order of Title Suit of 196 I. In this connection the appellate court
observed that since the respondents admit possession of the land in dispute G
as claimed by the appellants the question of identity in reference to the
documents was not much relevant. Actual possession over the disputed
land was not disputed. The appellate court then found that the Trial Court
had non-suited the appellants relying upon the evidence of Amin, whose
deposition in cross-examination tallied with the documentary evidence of H
    830                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A   1927, but while doing so the earlier report was not taken into consideration
    at all which supported the case of the appellants. It was observed that the
    order of the Trial Court relying on the cross-examination of the Amin was
    erroneous and incorrect. Thereafter the appellate court observed that during
    the settlement operation, whosoever is found in possession, is so recorded
B   accordingly. The respondents have admittedly been in forcible possession
    since 1958. Hence it was quite obvious that their names were recorded in
    the revenue records. Hence no reliance c9uld be placed on such records
    since it is observed that litigation in respect of this land had been going
    on since long. Thus the appellate court ultimately found that since the
C   appellants were deprived of their possession forcibly by the respondents,
    they were entitled to be restored back the possession, more particularly,
    in view of the fact that the Regulation 2 of 1956 is meant to protect the
    rights and privileges of the downtrodden people of the tribal areas and to
    save them from exploitation by other classes.

D       Aggrieved by the order passed by the appellate court, the respondents
  filed a writ petition which has been allowed and the order passed by the
  appellate court has been set aside. The High Court formulated two
  questions on the basis of which the order of the appellate court was
  challenged. Firstly, the finding that the land belonged to the members of
E Scheduled Tribe was without any evidence or material to sustain any such
  finding and secondly since the respondents have been admittedly in
  possession of the disputed land, taken forcibly since 1958, as per the
  findings of the appellate court itself, the respondents had acquired title by
  adverse possession. It is further found that the amendment vide Orissa
F Regulation 1 of 1975 giving retrospective effect to the period of limitation
  enhancing it from 12 to 30 years for prescription of right by adverse
  possession became effective from 2.10.1973 whereas the respondents had
  already perfected their right on completion of 12 years from 1958 i.e. much
  before 2.10.1973. In this connection, the High Court placed reliance upon
  a decision of the Orissa High Court reported in 65 (1988) C.L.T. p. 360,
G Madhiya Nayak v. Arjuna Pradhan & Ors., Thus, the only two reasons
  given by the High Court for allowing the writ petition and to set aside the
  orders passed by the appellate authority in different appeals are that the
  appellate authority jumped to the conclusion that the disputed land had
  been owned and possessed by the appellant (respondent No. 5 before the
H appellate authority) without there being any evidence in support of that
     LINCAI GAMANGO v. DA YANIDHI JENA [BRIJESH KUMAR, J.] 831

conclusion and the reason that the respondents had been in unauthorized A
occupation of the land in dispute and had perfected their rights by adverse
possession.

      We find both these reasons given by the High Court are not
sustainable. Coming first to the second point, we find that there is a B
decision of this Court direct on the point. It is reported in JT (2003) 9 SC
201, Amrendra Pratap.Singh v. Te) Bahadur Prajapati & Ors. The matter
related to transfer of land falling in tribal area belonging to the Schedule
Tribes. The matter was governed by Regulations 2, 3 and 7-D of the Orissa
Scheduled Area Transfer of Immovable Property (By Scheduled Tribes)
Regulations, 1956 viz. the same Regulations which govern this case also. C
The question involved was also regarding acquisition of right by adverse
possession. Considering the matter in detail, in the light of the provisions
of the aforesaid Regulation, this Court found that one of the questions
which falls for consideration was "whether right by adverse possession
can be acquired by a non-aboriginal on the property belonging to a D
member of aboriginal tribe"? (para 14 of the judgment). In context with
the above question posed, this Court observed in para 23 of the judgment
as follows :

        " ........ The right in the property ought to be one which is alienable E
        and is capable of being acquired by the competitor. Adverse
        possession operates on an alienable right. The right stands alienated
        by operation of law, for it was capable of being alienated
        voluntarily and is sought to be recognized by doctrine of adverse
        possession as having been alienated involuntarily, by default and F
        inaction on the part of the rightful claimant.. ....."

This Court then noticed two decisions one that of the Privy Council
reported in AIR (1923) P.C. 205, Madhavrao Waman Saundalgekar & Ors.
v. Raghunath Venkatesh Deshpande & Ors., AIR 36 (1949) Nagpur 265,
Karimullakhan s/o. Mohd Ishaqkhan & Anr. v. Bhanupratapsingh, holding G
that title by adverse possession on inam lands, Watan lands and Debutter
was incapable of acquisition since alienation of such land was prohibited
in the interest of the State. We further find that the decision in the case
of Madhiya Nayak (supra) relied upon by the High Court was referred to
before this Court and it is observed that the question as to whether a non- H
    832                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A tribal could at all commence prescribing acquisition of title by adverse
  possession over the land belonging to a tribal which is situated in a tribal
  area, was neither raised nor that point had arisen in the case of Madhiya
  Nayak. It is further observed that the provisions of Section 7-0 of the
  Regulations are to be read in the light of the fact that the acquisition of
B right and title by adverse possession is claimed by a tribal over the
  immovable property of another tribal but not where the question is in
  regard to a non-tribal claiming title by adverse possession over the land
  belonging to a tribal situate in a tribal area. It is, therefore, clear in view
  of the decision in the case of Amrendra Pratap Singh (supra) that a non-
C tribal would not acquire right and title on the basis of adverse possession.
  Therefore, the second ground for setting aside the order passed by the
  appellate court falls through. Therefore, the other factual aspect about the
  possession of the respondent over the disputed land and entries in their
  favour may also not be of much consequence, in any case, this aspect of
  the matter has to be seen and considered afresh in the light of other facts
D and circumstances of the case.

        Again so far the other question is concerned, namely, the appellate
  court, according to the High Court, having jumped to the conclusion that
  the land in question was owned and possessed by the appellants without
E there being any material on the record, we feel that the High Court has dealt
  with this aspect very cursorily. There seems to be no dispute about the fact
  that the disputed land falls in the tribal area. The appellate authority, whose
  judgment has been set aside by the High Court in the writ petition, has dt:ajt
  with and referred to orders passed in suits filed earlier by different parties
F and the effect of such orders. The respondents are in possession over the
  land in tribal area but the appellants pleaded their dispossession at the
  hands of the respondent non-tribals forcibly. The High Court, without
  considering all those aspects, as considered by the appellate court, came
  to the conclusion that the appellate court had jumped to the conclusion
  about the possession and ownership of the land in favour of the appellants
G without any evidence. The High Court would better have perused other
  orders passed by the authorities dealing with the point regarding possession
  and ownership of land in reference to question of burden of proof.

         In our view, the order passed by the High Court is not sustainable.
H   The question of acquisition of right and title by adverse possession by non-
     LINCAI GAMANGO v. DAY ANIDHI JENA [BRIJESH KUMAR, J.] 833

tribal over the land in the scheduled area belonging to a member of the A
Scheduled Tribe does not arise. Since the finding of the High Court on this
point is not sustainable, in our view, the whole matter needs a fresh look
considering the facts as indicated in detail in different orders passed at
different stages namely, the first order passed by the Project Administrator
which matter was later on remanded in appeal by order dated 8.4.1982 and B
thereafter the facts as mentioned in the subsequent orders including one
passed in appeal which has been set aside by the High Court by means of
the impugned order. If necessary, other relevant evidence on the record as
sought to be pointed out by the learned counsel may also have to be seen
in the light of the provisions of the Regulation No. 2of1956 before holding C
that there is no evidence or material supporting ownership, title or
possession of the applicants viz. the tribals. The implications of the claim
of the respondents for allegedly having perfected their rights by adverse
possession may also have to be examined.

      In the result, the appeals are allowed and the order and judgment D
passed by the High Court is set aside and the matter is remanded to the
High Court for fresh hearing and decision after notice to the parties, in the
light of the observations made in this judgment. Since the matter is hanging
for long, the High Court may perhaps do well to consider for expeditious
hearing and disposal of the case.                                             E

     Costs easy.

S.K.S.                                                   Appeals allowed.

                                                                            F